Harvey v. Fresno Traction Co.

VICTOR E. SHAW, J.,

pro tem.

Action to recover damages for a personal injury alleged to have been sustained by

[490]

plaintiff as a result of defendant’s negligence. Judgment for $750 followed a verdict in favor of plaintiff. The appeal is by defendant from an order of court made upon a statement of the case denying its motion for a new trial.

At the time of the alleged injury to plaintiff, defendant owned an electric railway upon which it, as a common carrier, operated cars between the city of Fresno and a station at its eastern terminus known as Sunny Side Vineyard, over which, in connection with a street-ear system of said city, it transported passengers between said points. The cause of action, as sufficiently, although perhaps inartistically, stated in the complaint, is based upon the theory that plaintiff at the time in question, although he had not entered defendant’s car, was nevertheless a passenger thereon by reason of the fact that defendant’s employees, by their acts, had accepted his offer to become such, and that in boarding the car he was by reason of defendant’s negligent operation thereof thrown to the ground and injured.

That one, though not inside of a carrier’s vehicle, may nevertheless, as to the carrier, occupy the position of a passenger entitled to the highest degree of care must be conceded. (Ja

cquette

v.

Capital Traction Co.,

34 App. D. C. 41, [25 L. R A. (N. S.) 407].) The rule is that “a person may become a passenger, without having come into the carrier’s vehicle, if the surrounding circumstances show an intent on his part to become a passenger and an acceptance of him by the carrier as a passenger.” (Hutchinson on Carriers, 3d ed., sec. 1005;

Nilson

v.

Oakland Traction Co.,

10 Cal. App. 103, 109, [101 Pac. 413].)